This practice advisory is the second in the series of practice advisories following up on the Supreme Court's decision in INS v. St. Cyr, 121 S. Ct. 2271 (June 25, 2001). The information in this advisory is accurate and authoritative, but does not substitute for individual legal advice supplied by a lawyer familiar with a client's case.

Q. What are the open issues in applying St. Cyr?

A. There are many open issues about the scope of St. Cyr. At this time, there is no statement from the INS as to its interpretation of these issues, although to date INS attorneys have taken a restrictive view of the scope of the decision. There also is no governing precedent from the BIA or the courts. Some of the open issues on the availability of 212(c) relief include:

(1) Whether 212(c) relief is available to persons who were convicted after a trial (rather than a plea agreement) before the enactment of AEDPA on April 24, 1996.

(2) Whether 212(c) relief is available based on the date of criminal conduct, even if the plea or conviction took place after the relevant change in the law.

(3) Whether 212(c) relief is available to those who entered into plea agreements after April 24, 1996 but before the enactment of IIRIRA on September 30, 1996.

Q. How can I argue that a client who was found guilty after trial is eligible to apply for 212(c) relief after St. Cyr?

A. The critical issue in a non-plea case will be whether a change in the eligibility for relief for someone who did not plead guilty constitutes a "retroactive effect." The Supreme Court in St. Cyr held that there was no congressional intent in IIRIRA to apply the change in 212(c) relief retroactively. However, the Court did not address whether those who did not enter into a plea agreement had suffered any retroactive effect. The logic of the opinion, however, reaches beyond the plea context.

Any non-plea case will require serious development of the factual and legal arguments for extending 212(c) relief. In preparing for such cases, consider some of the following arguments:

(1) The Supreme Court in St. Cyr concluded that the Landgraf presumption against applying new statutes retroactively applies to issues of eligibility for discretionary relief from deportation. 121 S.Ct. 2271, 2292 (2001). It said that altering the form of relief available constituted a "new disability." 121 S.Ct. at 2290.

(3) Specific factors noted by the Court - such as the way that a plea is a "quid pro quo" arrangement - can be understood as contributing to its conclusion that retroactive elimination of 212(c) relief in the plea context is an "obvious and severe retroactive effect." 121 S.Ct. at 2293. But there is no Landgraf precedent which requires that the retroactive effect be "obvious and severe" in order to trigger the Landgraf presumption against retroactive lawmaking. For example, St. Cyr cites to Hughes Aircraft Co. v. United States ex rel. Schumer, 520 U.S. 939 (1997). In this case, the change in the law resulted in "an increased likelihood of facing a qui tam lawsuit." There was no suggestion in that case that Hughes Aircraft had been prejudiced by any quid pro quo.

(4) In some cases, specific decisions made by the noncitizen in the criminal case can be presented as constituting specific reliance on the then-existing law. These decisions include: choosing to reject a plea; choosing not to devote substantial resources to the criminal defense due to the lesser penalties that were at stake; choosing not to appeal in light of the risks faced on a retrial. Such decisions have been treated as sufficient to establish retroactive effect in many cases. See e.g., Slusser v. Commodity Futures Trading Comm'n, 210 F.3d 783, 786 (7th Cir. 2000)(refusing to allow agency to apply higher civil penalties to a defendant who would not have expected to face such risks at the time that he decided how to finance his defense). If there is specific evidence bearing on reliance, it should be presented to the court or agency.

(5) You also may want to argue that reliance is not required to show retroactive effect. The opinion in St. Cyr makes it clear that there are many ways of establishing a retroactive effect. "Reasonable reliance" is only one of the concepts discussed by the Court.

As a general rule, cases involving retroactive application of sanctions for wrongful conduct have looked to the date of the underlying conduct. See Landgraf v. USI Film Products, 511 U.S. 244 (1994) (date of wrongful sexual harassment); Rivers v. Roadway Express, Inc., 511 U.S. 298 (1994) (date of wrongful racial discrimination); Lindsey v. Washington, 301 U.S. 397 (1937) (using date of criminal conduct to determine retroactive effect of new mandatory sentencing scheme).

Furthermore, when the Supreme Court sidestepped the issue of the proper date for retroactivity purposes in Hughes Aircraft Co. v. United States ex rel. Schumer, 520 U.S. 939, 946 n. 4 (1997), lower courts concluded that the date of the underlying conduct was the correct date for determining whether application of the new statute had a retroactive effect. See United States v. Hughes Aircraft Co., 162 F. 3d 1027, 1031 (9th Cir. 1998) (concluding that "the crucial event for purposes of non-retroactivity is the alleged presentation by Hughes of a false claim, and not the public disclosure of this conduct"). See also Scott v. Boos, 215 F. 3d 940, 950 (9th Cir. 2000) (interpreting changes to RICO liability as applying to conduct after the date of enactment of the amendments). All of these cases are premised on the idea that the defendant has a right to fair notice of the consequences of the underlying conduct.

For a memorandum of law discussing arguments in favor of using the date of conduct, see the brief of the New York State Defenders Association in Zgombic v. Farquharson, No. 00_6165 (2nd Cir. 2000), at http://www.nysda.org/NYSDA_Resources/Defense_Immigration_Project/
defense_immigration_project.html#ProjectResources.

Q. How can I argue that a client whose plea was entered after AEDPA, but whose conduct took place before AEDPA, is eligible for 212(c) relief?

A. See part 5 of the previous question.

Q. What if a client pled guilty after AEDPA but before IIRIRA?

A. In some cases, clients who pled guilty after AEDPA and before IIRIRA may have a very strong argument that they fit within the logic of St. Cyr, even under the narrowest understanding of the Court's holding. For those who pled during that time period, and whose crimes were later classified as aggravated felonies, there is an argument that they did not face mandatory deportation at the time of the plea. This class of people should have the same rights as the class discussed in St. Cyr. Indeed, in one case the government stipulated to providing the same relief as under the Second Circuit's decision in St. Cyr. Maria v. McElroy, 58 F. Supp. 2d 206 (E.D.N.Y. 1999), aff'd, 2000 WL 186477 (2d Cir. 2000)(unpublished opinion).

Q. What is the critical date for calculating whether my client had seven years of lawful unrelinquished domicile?

A. The St. Cyr court looked to reasonable expectations at the time of the plea. These expectations certainly included the case law on 212(c) eligibility which allowed noncitizens to continue to accrue their seven years of lawful domicile during the period up to a final order or through judicial review. See, e.g., In re Lok, 18 I & N Dec. 101, 105 (B.I.A. 1981), aff'd, 681 F. 2d 107 (2d Cir. 1982)(accrual of domicile through final order); Wall v. INS, 722 F. 2d 1442 (9th Cir. 1984)(accrual of domicile through judicial review); United States v. Jimenez-Marmelejo, 104 F.3d 1083 (9th Cir. 1996) (dismissing criminal indictment because US could not prove lawful deportation element of illegal reentry offense where lawyer in deportation case failed to pursue an appeal that would have resulted in noncitizen accruing seven years lawful domicile).

In some cases, you may also be able to raise retroactivity concerns based on the length of time that has passed since the plea. The St Cyr Court stated that there is no single test for assessing retroactive effect. Thus, while reasonable reliance is one way of establishing a retroactive effect, retroactivity concerns are also raised when time has passed and the affected individuals have developed interest in repose. See, e.g., United States v. Carlton, 512 U.S. 26, 37-38 (1994) (O'Connor, J., concurring) (describing interests of repose in curbing retroactive legislation). Application of a rule that looks only at the length of domicile at the time of the plea would violate these interests by allowing for mandatory deportation of persons who may have pled guilty to an offense a few years after obtaining their lawful permanent residency, but who attained their seven years of lawful domicile long before the enactment of 1996 laws.